Human Rights Scandal
An example of modern justice at English law
I am writing to share with you, if I may, an example of modern
justice under the Human Rights Act 1998 This
is a case where a State Department used the threat of costs to intimidate a Defendant into
dropping out of proceedings This happened on
12th October 2000, just over a week after the new Act came into force.
I hereby enclose copies of the speech that
would have been used in Court, had the Defendant
not been intimidated by the threat of financial ruin into not testifying in Court Copies of this letter to you will be sent to the
Prime Minister and to the media.
The case in question is a civil one It concerned the import of 2 different DVDs from
the USA The total value of the consignment
was around £36 (incl. P&P) The importer
had never viewed the material He chose the
titles from an internet website.
HM Customs intercepted the DVDs en-route and seized them because they
were 'indecent/obscene' There then followed
a series of correspondence between the importer and HM Customs There seemed to be an inconsistency in HM Customs'
view of why the material had been considered to be obscene (and why they had been seized)
In any event, the DVDs were held to have been imported contrary to
section 42 of the Customs Consolidation Act 1876 by reason of their 'indecency/obscenity'
The only test for obscenity is that which has arisen from case law
following the introduction of the Obscene Publications Act 1959 This case did not centre on any criminal activity,
however, because it could not be said that the importer had 'knowingly' imported the
material, nor did he intend to distribute the DVDs to any other person.
Section 42 of the Customs Consolidation Act is not clear There is no way that members of the public can
find out whether some article is, or is likely to be, deemed 'obscene' There is no complete official list of banned
films There is no set criteria given by
which citizens can work out what items may be
obscene The only way to discover if an item
is obscene is to attempt to import it. If
Customs seize it, then a Court must decide the issue.
This fact of Customs' Law in the UK is contrary to the requirement of the
Human Rights Act that any interference/restriction/obstruction of a citizen's rights must
be prescribed by law.
Customs laid complaint before a magistrates' court How the proceedings started is important in
relation to the costs implications involved. Whereas
there is no power to award costs made by way of
by virtue of section 64 of the Magistrates' Courts Act 1980, e.g. an application made
under the Police Property Act 1897, no such rule extends to proceedings begun by way of
Under s.64 of the 1980 Act, 'the court may order a
successful complainant such costs as it thinks just
and reasonable' In this case, a Customs
Officer, Mrs. Mal Guest, made the complaint
own name but the complaint was made, for all intents and purposes by: HM Customs & Excise - a Government Agency
The importer thus became the Defendant Being the sole breadwinner with a young family,
the Defendant could ill afford to appoint a solicitor to defend his case in the Magistrates' Court He knew that a Court
had to decide the issue, there was no alternative
for the Defendant but to go to Court, if the
issue of whether the DVDs were obscene or not was to be decided.
However, the Defendant was not foolhardy He knew that although there was an important
principle at stake, there was a chance that he may have to pay costs, so he set about
trying to find out what he could about the nature of the proceedings and the likely costs
implications before going ahead.
The Defendant was informed by Customs Officer, A K Vickery, in a
letter dated 14th March 2000, and by Andrew McNamara in a letter dated 14th
April 2000 that the proceedings were civil in
nature, but were to be held in the Magistrates Court.
However, in all subsequent letters from HM Customs' Solicitor's
Office, all letters were headed 'Regina -v- Paul H' (which is the traditional way to
refer to criminal proceedings).
I am the Defendant's wife. I
am a Trainee Solicitor I have a good Honours
Degree in Law (an LLB) from the University of London's Birkbeck College and I am currently
more than halfway through the postgraduate Diploma in Legal Practice at Manchester
Metropolitan University I was the
Butterworths' Prize Winner for Medical Law & Ethics at Birkbeck in 1998.
I agreed to help my husband defend his case in Court because I agreed
with my husband that there was an important legal principle at stake Although I was familiar with the new CPR, I had
never heard of Condemnation Proceedings and my usual methods of legal research drew a
blank So we decided to ask around for
The Defendant sent correspondence to 'UK.legal' - an internet based
discussion group (newsgroup) for lawyers. No-one
there knew what Condemnation Proceedings involved. Contact
was made with the Court where the trial was to be held.
The only information received from the Court advised that such proceedings
had never been held there and that it would 'be adjourned'.
Contact was made on a number of occasions with the Lord Chancellor's
Department to find out especially what procedural rules governed these proceedings Was it the new Civil Procedure Rules introduced
under Lord Woolf; or was it the Magistrates Courts Act and Rules? No-one seemed to know, least of all staff in the
Lord Chancellor's Department, but they did their best to give some (albeit very limited)
The Defendant was also understandably wary of the possible costs
implications in trying to defend a principle of law with very limited financial means, but
he was reassured with the belief that the Court would know that there was no other way of
deciding the matter; that he had done nothing wrong; that the DVDs were very low value;
and that any costs awarded had to be just and
reasonable in all the circumstances. He
kept this in mind after contacting: Customs;
the Lord Chancellor's Dept.; the Court Service and the Leigh & Wigan Magistrates'
Justices' Clerk to ask what the likely cost involved would be, all drew a blank.
The Defendant turned up for the hearing dates scheduled for 10th
August 2000, only to be told that a court clerk was sick and that due to this staff
shortage, there was no way that they could take the hearing that day Another date was re-scheduled
at no fault of the Defendant.
Outside the courtroom, I asked Counsel for HM Customs, Mr Paul Burns,
of Exchange Chambers, Liverpool, whether he wanted to exchange skeleton arguments He said that as no order had been made that he
would not But he did say that in order that
we could 'get everything settled on the day' (or words to that effect) that I
should tell him what
our argument was going to be I told him that as the new trial date was in
October (at Mr. Burns' own insistence) that we would be relying on the Human Rights Act
The Customs Officer in attendance with Mr Burns at the Court
suggested that we write to their solicitor to that effect and that Customs may in that
instance 'drop the matter'. However,
we did not hold much faith in this assertion because Customs had already told us, in
correspondence, that they were 'legally obliged' to take the matter to Court.
On the 28th of September 2000, I received a letter from HM
Customs' Solicitor's Office, from a Mrs. S Gungadin (Legal Executive Officer) Note that that letter states, 'Please send any
skeleton argument on Human Rights Act by 9
October' This is evidence that I informed
Counsel for Customs, in August, what my argument was going to be.
I attempted to contact Mr Burns several times to give him skeleton
argument I telephoned his Chambers to be
told he was at court and I e-mailed him several times.
When the e-mail addresses supplied failed, I looked up his details in the
Bar Directory on-line, found his Chambers' website and e-mailed them direct with a
message I even told Customs' Solicitor's
Office to give Mr Burns my telephone number at home so that I could present him with my
skeleton argument before the hearing. In
short, I told him what my argument would be in August (i.e. that I would rely on the Human
Rights Act) and I also attempted, several times, to present him with details of the exact
Articles that I would be relying on, before trial.
Furthermore, Mr Burns is an experienced Barrister and the Human
Rights Act 1998 is the biggest single piece of legislation to enter the legal history of
the UK (in my opinion) There are only so
many articles and the situations in which they can apply.
Surely Mr. Burns could have been expected to work out what Articles I was
going to rely on? After all, I worked it out
and I'm only a student.
Anyway, my husband and I diligently prepared for this trial I spent hours scouring the internet for
information and I asked for input from lots of experienced lawyers, including my lecturers
at Law School I announced to everyone on my
course, in the middle of a lecture, what I was going to do.
I was excited (and they shared in that excitement) that we were on the brink
of receiving an important result in the new dawn of Human Rights.
I am now dreading going back to college to tell them of the injustice
we suffered How ironic and how more marked
the injustice under the banner of Human Rights!
We got to the Leigh & Wigan Magistrates' Court in plenty of time,
after dropping our children off at nursery for the day.
We were both extremely nervous at being present at a Court trial for the
first time, but we were also confident that we were about to receive justice.
We never got that justice. We
never got to say our carefully prepared speech.
Almost soon as we got there, Mr Paul Burns, Counsel for Customs,
ushered us into an interview room, supposedly to discuss what we were going to do at
trial He said that he would oppose my
representing my husband Yet he had told us
in August that he would not I told him that
the Magistrates would decide the issue (because I am not legally qualified)
He then asked whether we had considered the costs implications At that moment in time, that was the last thing on
our minds We were more concerned with
whether we would speak up clearly enough and whether the lay Justices would be able to
follow our line of reasoning But Mr. Burns'
voice took on a more sinister tone and he said, 'because I can tell you that the costs involved are
mean anything to me', because Mr Burns', a wealthy barrister's idea of
'substantial', was likely to vary considerably from mine, a student and mother
of two young children, living in a council let house. 'Thousands', he replied,
Mr. Burns asked whether we had financial backing We replied that we did not He went on to say that he considered the
adjournment in August (when the clerk was sick) as a 'Pre-trial review', that we
would have to pay for That included two
Customs Officers coming from London, his fees, the solicitors fees etc. all dating back to
January when the DVDs were intercepted.
Further, he said that he would press for an adjournment because
he had asked
to exchange skeleton arguments and because I had not (which was completely untrue),
then he would need more time to prepare. This
would, he informed us, most likely involve everyone having to come back another day, with
the rising costs implications of the Customs' Officers travelling to/from London; his
fees; more solicitors' costs etc. etc.
My husband was present. It
did not matter which of us he said it to He
knew that we were married That any costs
implications would affect us as a family. I
was, quite literally, terrified.
I was in a Court of Law and
I have never been so scared in my entire life. Suddenly
my family's future was in ruins. We were like
rabbits caught in headlights We couldn't go
back We couldn't go forward We faced the possibility of financial ruin - the
consequences of which we would be repaying for the rest of our lives and all for two DVDs
worth £36 and for having the audacity to
really believe that the Human Rights Act could protect ordinary, honest, hardworking
citizens like us, against the State.
The horrible truth was that we were not vexatious litigants We had not brought the case to prove a point The proceedings were started by the State
(Customs) against Paul.
I asked Mr. Burns to give me exact figures I told him that I wanted to know how much it would
cost to drop out then and how much to go forward. Mr
Burns asked the Customs Officer to find out the figures.
The Customs Officers remained with Mr Burns in the interview Room,
contacting their solicitor's office by mobile telephone to find out what costs were
involved With the benefit of hindsight, I
now find it surprising that, just before a trial, he hadn't already worked out his
Paul and I went to speak to the Clerk.
I told the Clerk that we were worried about costs and what Mr Burns had
said I asked him whether we would have to
pay all the costs that Customs asked for. He
said he didn't know, that it was up to the Magistrates.
He said that the Court hadn't had a case like ours in over 8 years.
The clerk then went onto tell us about how
contributions towards costs are usually awarded in
criminal cases, for e.g. £55 'But
civil cases, phew!' He then relayed to
us a story about the recent civil case in that Court, of a farmer accidentally destroying
some crested newts in a field and being ordered to pay
Paul and I went back outside and stood in the corridor The clerk chatted to the usher in the courtroom Customs' were still in the interview room The trial hadn't even begun, but for us, it was
over Paul looked like a broken man I felt violated and completely helpless We were at the mercy of Customs and they knew it.
They came back with the figures.
Three and a half thousand pounds if we dropped it there and then (professing
kindness on their part, they said that they wouldn't charge us the solicitor's costs) Seven and a half thousand,
'and ticking...' were Mr. Burns' exact words, if we carried on (and
that was the figure without a further adjournment). The
clerk advised us that if we appealed to the Crown that the figure could be,
'ten times that'.
There was no way we had the means to pay that So we accepted our defeat.
The clerk advised that Paul did not have to take oath and state that
the DVDs were his There seemed little point: they were going to be destroyed anyway.
The Magistrates came in. Paul
did not take oath, but he was made to put forward the costs considerations himself I didn't get to speak The Magistrates made the order for condemnation of
the DVDs, went out, came back and awarded £1500 in costs in favour of Customs.
We were so relieved to get out of there We had been expecting to pay the equivalent price
of a terraced house around here, for having the audacity to seek justice At least we had gotten off relatively lightly.
However, neither of us could shake off that feeling of
'violation' at how we had been treated We
had been through such a traumatic experience and it had happened in a Court of Law, over
Paul's supposed right to possess property that he had already paid £36 for The irony is that we had gone to Court to stop
Customs from violating Paul's Human Rights.
The more we thought about it, the more upset we became We are now convinced that the amount awarded was
excessive We are also angry at how we were
bullied by Counsel for Customs.
I have studied law for over 5 years.
In all that time, I have been sold the idea of justice and of the rule of
law: that every man is equal before the law I revelled in the complexity and elasticity of
wonderful legal concepts and I truly believed that the truth of an event was decided by
who had the best legal argument on the day of trial.
How wrong I was, if our experience is typical How tragic that it has happened barely a week
after the introduction of the Human Rights Act
If our experience is typical, then I fear for our legal system I fear for our nation and I fear for my little
children growing up in that nation, where the State will bring to force anything in its
power against its citizens, including lies and bullying tactics
I fear most of all because now the State has the
shield of the Human Rights Act to hide against No-one will believe that this sort of thing could
have happened after the introduction of the Human Rights Act No-one will believe that this could have happened
to ordinary people in the dawn of a new liberty under the law But it did.
As a Trainee Solicitor, and an honest person, I also know that I
cannot succeed in a working environment where my opponents are going to use such bullying
tactics and lies to win In the last few
days, I have been re-thinking my career aspirations.
I just pray that my faith can be restored.
I hope that I can be somehow assured that this was
not the act of the State; that this was instead some breach of some law by an individual
person/department and that this behaviour will not be condoned.
I can only trust that this injustice will be remedied somehow.